1992 PLC 7 (PLP)

ZIA MAHMOOD MIRZA, J.

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan seeks to call in question the order of the Punjab Labour Appellate Tribunal, dated 23-12-1985 whereby back benefits were not allowed to the petitioner.

2. Facts forming background of this petition, briefly stated, are that the petitioner was posted as Accountant in the Gilgit Branch of the Allied Bank of Pakistan from 5-4-1979 to 4-4-1980. One Muhammad Ayub Khan was then the Manager of the said branch. Petitioner was later promoted and posted as Manager, Cabinet Secretariat Branch, Rawalpindi. Meanwhile, some defalcations/irregularities were detected in the Gilgit Branch as a result of which, the petitioner, Muhammad Ayub Khan Manager and one Nadir Khan who had taken over charge from the petitioner in the Gilgit Branch were charge-sheeted. Similtaneoulsy, a criminal case under section 409/420/468/ 471, Cr.P.C. was also registered with the police against the three officials. Police dropped the case against the petitioner as they found that he was not directly involved in it.

3. The charge-sheet served on the petitioner contained as many as nine charges which are summarized as follows:- (i) Unauthorised transfer of money from one account to another to accommodate some of the parties/account holders in connivance and collaboration with Muhammad Ayub Khan, Manager; (ii) Embezzlement of Rs.1,07,789 from the Bank's income account with the petitioner's collaboration and connivance--Parties accounts regularly debited with interest charged on advances but it was not credited in the income account and instead diverted for issuance of DAC/Pay Orders which were subsequently encashed and amount embezzled; (iii) Some of the pages were deliberately torn out from the ledgers and replaced for concealing the advances; (iv) Concealment of unauthorised advances in the monthly returns submitted to the Central Office, Karachi; (v) Fraudulent withdrawal of Rs.6,155 by the Manager from the parties' accounts through bogus cheques with the collaboration and connivance of the petitioner; (vi) Issuance of D.Ds/T.Ts/DA.Cs. without funds; (vii) Misuse of National Bank of Pakistan Account. (viii) Replacement of unauthorised debit transfer vouchers with bogus cheques to conceal the factual position. (ix) Unauthorised transfer from parties' accounts for the purpose of adjustment of advances outstanding on 29-12-1980.

4. The departmental enquiry was held into the aforementioned charges. Mr. Iftikhar Ahmad Quraishi, complainant appeared before the Enquiry officer on behalf of the Bank. Enquiry proceedings (copy Annex. `D' with the written statement) show that the complainant did not produce any evidence. I lowever, in reply to a question put by the petitioner, he stated that ten entries mentioned in Annexure `I' (with the enquiry proceedings) pertained to the petitioner's period and that DA.Cs./P.Os. mentioned in Annexure `II' (with the enquiry proceedings) were issued without funds and the vouchers were signed by the petitioner and the Manager. Entries in Annexure I were in respect of unauthorised transfers from the parties' accounts. Petitioner made a statement before the Enquiry Officer wherein with respect to charge No.l, he stated that it was his first appointment as Accountant Incharge and Muhammad Ayub Khan Manager was there since the inception of the Branch. As per schedule of duty, all the transfer vouchers as per past practice in Gilgit Branch were prepared by the Manager who signed them after affixing the transfer stamp which the Manager kept with himself. Vouchers were then passed on to him (the petitioner) who signed them after checking the authorities of the parties kept with the Manager. He explained that he never doubtcd the integrity of the Manager and signed in good faith. As regards charge No.2, petitioner stated that the amount in question was embezzled by the Manager and all the DA.Cs./P.Os. were prepared by [lie Manager personally and he only signed in good faith. Regarding charge, it was sated by the petitioner that the record of advances was kept by the Manager and he himself prepared all the statements which the petitioner signed in good faith. Similar was his statement with respect to charges Nos.6 and

9. Charges Nos. 3, 5, 7 and 8 according to the petitioner, did not pertain to his period.

5. The Enquiry Officer submitted his report (Annex. `A') stating therein that the charges detailed in Annexures `I' and 'II' (with the report) were proved against the petitioner. It was, however, observed by the Enquiry Officer that "the Manager had full control over the working of the branch and due to his mala fide intention, he used to get the vouchers prepared by him signed by the Accountant so that the Acctt: may not oppose the preparation of such vouchers. The negligence of the respondent is proved as he was supposed to bring such false transactions made by the Manager to the notice of higher authorities". It was further observed by the Enquiry Officer that the irregularities have since been rectified. Out of the embezzled amount of Rs.1,07,789 the ex-Manager had paid the sum of Rs.98,449 leaving a balance of Rs.9,

340. Petitioner, according to the Enquiry Officer, was not involved in the misappropriation of Bank money. Thus, the finding of the Enquiry Officer, was that the charges detailed in Annexures `I' and `II' with his report were proved against the petitioner and he was guilty of negligence in not reporting the false transactions of his Manager to higher authorities.

6. In view of the findings of the Enquiry Officer, Zonal Chief of the Bank vide his letter (Annex. `C') recommended the stoppage of the petitioner's increment for the year, 1981 and administering a warning to him. Competent Authority, however, proceeded to dismiss the petitioner from service vide, order dated 2-3-1982 (Annex. `D'). Petitioner preferred a departmental appeal which was not accepted and the decision was communicated to him through letter, dated 10-5-1983 (Annex. `E'), wherein it was stated that "with reference to your appeal, dated 23-5-1982 requesting for reinstatement in Bank's service, we write to inform you that your appeal was placed before the Review Committee and after thorough examination of the case have concluded that you were found negligent in the performance of your duties for not reporting the matter to higher authorities of the Bank regarding the embezzlement of huge amount at Gilgit Branch, where you had remained posted as Accountant. You cannot therefore, be completely absolved of your responsibilities; therefore, your appeal for reinstatement has not been considered favourably. Petitioner was, however, offered a fresh appointment which he did not accept.

7. Failing to get relief at the departmental level, petitioner challenged the order of his dismissal in Writ Petition No.386/1983 which was dismissed in limine on 7-12-1983 as it was not thought to be a fit case for interference in discretionary jurisdiction. Petitioner then after serving a grievance notice on the respondent-Bank filed a petition under section 25-A of the I.R.O. seeking his reinstatement with back benefits. The Labour Court No.6, Rawalpindi, after recording the evidence adduced by the parties, dismissed the grievance petition by order, dated 18-6-1984 on the short ground that it was limitation barred. Petitioner preferred an appeal which was allowed by the Punjab Labour Appellate Tribunal by order, dated 16-8-1984 holding that the grievance petition was within time. Case was accordingly remanded to the Labour Court for decision on merits. After the remand, Bank took an objection before the Labour Court that he was not a workman and as such his petition was not maintainable. This objection was repelled by the Labour Court and it was held that he was a workman. On the merits of the case, Labour Court observed that the petitioner being a subordinate was under no legal obligation to report the conduct of his Immediate Officer to the higher authorities. Thus it was held that the failure of the petitioner to report the misconduct of the Manager to the higher authorities did not amount to negligence. Taking this view of the matter, the Labour Court vide order, dated 23-10-1984 allowed the grievance petition and ordered the petitioner's reinstatement in service with all back benefits.

8. Respondent-Bank challenged the aforementioned order of the Labour Court in an appeal which was accepted by the learned Appellate Tribunal on 15-1-1985 holding that since the petitioner at the time of his dismissal was admittedly functioning as a Manager, he was not covered by the definition of "Workman" and, therefore his grievance petition was not maintainable. Petitioner assailed the order of the learned Appellate Tribunal in W.P. No.28 of 1985 which was accepted by a Division Bench of this Court vide order, dated 9-4-1985 holding that in view of the earlier pleadings of the respondent-Bank, it was not open to it to question the petitioner's status as a workman. Matter was agitated before the Supreme Court. Their Lordships upheld the view taken by the High Court but since the Punjab Labour Appellate Tribunal had not adverted to the merits of the case and had accepted the appeal of the respondent-Bank only on the question of status of the petitioner, it was directed that the appeal before the Punjab Labour Appellate Tribunal shall be deemed to be pending for decision on merits. In view of this direction, learned Punjab Labour Appellate Tribunal decided the respondent's appeal afresh vide order, dated 23-12'1985 holding that the impugned order of dismissal could not be sustained for the reason that only five out of nine charges were proved against the petitioner and if the Enquiry Officer had found him guilty of only these five charges "possibility cannot be ruled out that the employer may have prescribed some other kind of punishment short of dismissal". Thus the Labour Court's decision to set aside the petitioner's dismissal was maintained though for different reasons but the petitioner was refused the back benefits on the ground that although some of the charges were proved against him on account of his admission, his dismissal was being set aside only on a technical ground. The Appellate Tribunal's decision to withhold the back benefits has been brought under challenge in the present Constitutional petition.

9. I have heard the learned counsel for the parties at considerable length. Learned counsel for the petitioner submitted that the reason given by the learned Appellate Tribunal for disallowing back benefits to the petitioner namely that some of the charges were proved against him on account of his admission was not borne out from the record. According to the learned counsel, the statement of the petitioner that he in good faith signed some of the documents prepared by the Manager did not amount to admission of any charge and that is why the departmental authorities on the petitioner's appeal only found him negligent in not reporting the embezzlement in the Branch to the higher authorities of the Bank. Next contention of the learned counsel was that the order dismissing the petitioner having in any case been set aside, he was entitled to back benefits for the period during which he remained out of employment and these benefits could be refused only if he was gainfully employed elsewhere. Reliance for this proposition was placed on "Pakistan v. Issacs" (P L D 1970 SC 4L5) and "Dilkusha Enterprises Ltd. v. Abdul Rashid and others" (1985 S C M R 1882). Learned counsel for the 'respondent-Bank, on the other hand, argued that in adjudicating a grievance, Labour Tribunals are under a statutory obligation to go into all the facts of the case and, therefore, the learned Appellate Tribunal was right in disallowing the back benefits on the premises that some of the charges were proved against the petitioner on his own admission. Learned counsel next submitted that the view taken by the learned Appellate Tribunal amounted to a finding of fact which was not open to interference in writ jurisdiction. Learned counsel also argued that even according to the rulings relied upon by the petitioner, a reinstated employee would be entitled to the back benefit is only if he had not remained employed somewhere or engaged in some profitable business during the relevant period. It was urged by the learned counsel for the respondent that the petitioner did not lead any evidence to show that he was not so employed or engaged and, therefore, he was not entitled to back benefits.

10. I have considered the submissions made by the learned counsel for the parties and find force in the contentions raised on behalf of the petitioner. No doubt, the petitioner during the departmental inquiry admitted his signatures on some of the documents but he had categorically stated that the documents in question were prepared by the Manager which he signed in good faith not doubting the integrity of his Manager. This plea of the petitioner, it appears, was in a way accepted by the Enquiry Officer when he observed in his report that the Manager had full control over the working of the Branch and with mala ride intention, he used to get the vouchers prepared by him signed by the Accountant so that the latter may not oppose the preparation of such vouchers. A finding was thus recorded by the Enquiry Officer that the petitioner was negligent in not reporting the false transactions made by the Manager to the higher authorities. It appears that the same view was ultimately taken by the higher authorities in the Bank when they disposed of the petitioner's appeal. Their conclusion after thorough examination of the case, as noted hereinabove, was that the petitioner was negligent in the performance of his duties in so far as he did not report the embezzlement in the Branch to the higher authorities and as such he could not be completely absolved of his responsibilities. It was presumably on account of this view that fresh appointment was offered to the petitioner. If the departmental authorities had really believed that the petitioner was guilty of some of the charges, they would not have offered him a fresh appointment as an officer in the Bank. Learned Appellate Tribunal has not given any consideration to these vital aspects of the matter which were quite relevant and he proceeded to record the impugned finding that some of the charges were proved against the petitioner on account of his admission simply on the basis that he had admitted his signatures on some of the documents. Learned Appellate Tribunal has not specifically or with reasons controverted the stand of the petitioner that he in good faith signed the documents prepared by the Manager not doubting his integrity. In the circumstances, the learned Appellate Tribunal was in error, if I may say so with respect, in assuming that the petitioner had admitted some of the charges just because he admitted having signed some documents in good faith and then proceeding to withhold the back benefits on this assumption.

11. Apart from what has been said above, even if it be assumed for the sake of argument that the view taken by the learned Appellate Tribunal that some of the charges stood proved against the petitioner on his admission was correct, yet since the Tribunal adjudged the petitioner's dismissal to be wrongful and consequently set it aside, petitioner was clearly entitled by way of consequential relief to the salary for the period during which he remained out of service as a result of the order of dismissal. It may be noted that the petitioner was all along challenging the legality of his dismissal which means that he was throughout willing and ready to render service to his employer. Law is well-settled that in case an employee is reinstated in service after his removal/dismissal is declared as illegal, he is entitled to the back benefits for the period during ,p which he remained out of employment, of course, if during that period he had not been engaged in any other gainful employment or some profitable business. Reference may usefully be made to the following observations made by their Lordships of the Supreme Court in the aforementioned case of Pakistan v. Mrs. A. V. lssacs:- "The next question that arises is as to what is to happen in cases where a person is dismissed from service but subsequently the dismissal is held to be unlawful. Should a Government servant be entitled to recover his pay for the full period he was kept out of service? It seems to me that if the dismissal was wrongful, then it was due to no fault of the servant that he was prevented from serving the State. If he is to be treated by virtue of the declaration given by the Court as being still in service, then 1 see no reason why he should not also be given by way of consequential relief the salary for the period as if he was actually rendering service . . . . . . .. . . . . . . . . . If during this period he has accepted other employment or engaged in other profitable business, then any amount earned by way of salary from such employment or as profits of such business would, of course, have to be set off against the salary due for two reasons " Reference with advantage may also be made to a case reported as Niaz Ali v. Punjab Urban Transport Authority, Lahore and 3 others (P L D 1983 Lah. 661), where the Labour Appellate Tribunal while maintaining the decision regarding the reinstatement of the employee had disallowed back benefits on the ground that the negligence on the part of the employee was an admitted fact. Order of the Appellate Tribunal refusing back benefits was set aside by this Court holding that "once it was held that the termination of the service was wrong or unsustainable, it followed as a natural corollary that withholding of the salary or incidental benefits was also wrongful and without lawful authority". .

12. It was argued by the learned counsel for the respondent-Bank that even on the principle laid down in the case of Mrs. A.V. Issacs, petitioner was not entitled to the back benefits as he led no evidence to show that he remained jobless during the relevant period. Learned counsel sought to contend that it was for the petitioner to prove by at least making an oral assertion that he was not gainfully employed elsewhere during the relevant period. Reliance for this proposition was placed on a judgment of this Court reported in 1986 P L C 1166 (Labour cases). Learned counsel made a grievance that this point was urged before the learned Appellate Tribunal but he has not adverted to it in the impugned order. It is undoubtedly an established principle that if a reinstated employee had been gainfully employed somewhere or was engaged in some profitable business during the period lie remained out of service, then the amount earned by him from such employment or business shall have to be set off against the arrears of salary due to him. Since the Tribunals below have not addressed themselves to this important question which is a pure question of fact and has to be decided on evidence, this case shall have to be remanded for proper determination of this question.

13. Upshot of the above discussion is that the impugned order of the learned Labour Appellate Tribunal withholding the back benefits on the premises on which it was based cannot be sustained and the same is hereby set aside. However, the case is remanded to the learned Labour Appellate Tribunal for passing a fresh order regarding the back benefits in accordance with law keeping in view the principle aforementioned, of course, after recording a definite finding whether the petitioner had remained out of job upto the date of his reinstatement or he was gainfully employed or engaged elsewhere during the period he remained out of service. With this observation, this writ petition is allowed but with no order as to costs. H.B.T./E-36/L Case remanded.